Hillyer v. Overman Silver Mining Co.

Dy the Court, Lewis, C. J.: A judgment was recovered by the plaintiffs in this case against the Overman Silver Mining Company for the sum of five hundred dollars, upon a contract claimed to have been entered into between themselves and the defendant, by the terms of which the Company agreed to pay them a salary of two hundred and fifty dollars a month, during the year 1869, for transacting and attending to its legal business. This salary was regularly paid up to the month of July, at which time the defendant refused to make any further payment, claiming that it had entered into no such contract with plaintiffs as claimed by them. The only question now in the case is, whether any agreement to continue for the term of a year was in fact executed by the defendant. The Court below found there was, and thereupon rendered the judgment from which this appeal is taken, but we find the evidence does not warrant such a result. It appears that at the request of the defendant’s superintendent the plaintiffs, in the month of December, A.D. 1868, submitted a written proposition to the defendant, whereby they agreed to transact and attend to all the legal business in which the defendant might be interested in the State of Nevada during the year 1869, for the sum of two hundred and fifty dollars per month. It is not claimed by the superintendent, nor does it appear to have been the understanding of plaintiffs, that that officer had the authority to execute a contract of that kind on behalf of the defendant. Neither was there any attempt on his part to do so. The evidence shows that he asked plaintiffs to make a proposition so that he might submit it to the company, and not with a view to acting upon it himself. The proposition was given to the superintendent, who sent it to the president or secretary at San Francisco. As the superintendent did not pretend to execute the contract, or employ plaintiffs, it is necessary only to determine whether the [56] board of trustees, wbo alone were the 'authorized agents of the company to represent it in the making of such contract, executed it. It is not claimed that any contract was made, except by the acceptance of the proposition submitted by plaintiffs. Was it accepted by the board of trustees? We think it is not proven that it was, but the converse rather is established by the defendant. The secretary of the company, whose duty it was to be present at the meeting of the board, and to keep minutes of its proceedings, testifies that the proposition of plaintiffs was never brought before the board, or acted on by it. Several of the officers undoubtedly knew of the proposition, and may have led plaintiffs to believe, by conversations and otherwise, that their proposition had been accepted ; but these officers, who could not bind the company in a contract of this kind by directly executing it on its behalf, certainly could not impose any such liability upon it by simply persuading a person that the corporation itself had done so, when in fact it had not. As the case is presented here, neither the president, superintendent, nor both, had the power to execute the contract sued on. That authority is by law vested in the board of trustees, and it is not claimed that it had been delegated to those officers, or that they had been authorized by the board to act for them. It is shown by plaintiffs that bills were presented to the board for the salary, claimed by them, and that they were allowed, and, indeed, paid. This evidence would doubtless raise the presumption that the plaintiffs’ proposition had been accepted by it, and was sufficient to justify that conclusion, were it not overborne by direct evidence that such was not the case. Here it is affirmatively shown that the proposition was not submitted to or acted on by the board, and thus the presumption which might otherwise arise from its action allowing the bills is entirely destroyed. Why the claims were allowed and the money ordered paid to plaintiffs, is a question not necessary to be inquired into. It is sufficient here that they did not accept the proposition. There can be no valid executory contract unless there be a meeting of the minds of the respective parties upon its terms and conditions. “ There is no contract,” says Parsons, “ unless the parties thereto assent, and they must assent to the same thing in the same [57] sense.” (1 Parsons on Contracts, 399.) Can it be said that the board of trustees of the Overman Company assented to the terms proposed by the plaintiffs in their proposition, when it is sworn the proposition was never brought before it, or in any way acted upon by it, and indeed the board did not know of its existence, as appears to be the case ? The trustees can only bind the corporation under our law when they are together as a board, acting as such. (See The Yellow Jacket Company v. Stevenson, 5 Nev. 224.) The plaintiffs’ proposition not having been brought to the knowledge of the board, it cannot be presumed it knew anything of it, and consequently cannot be held to have accepted it. The burden of establishing the contract was upon the plaintiffs; having failed to do this, the judgment must be reversed.